Nogueira v. Commissioner of Correction

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LEONARDO NOGUEIRA v. COMMISSIONER
OF CORRECTION
(AC 38119)
DiPentima, C. J., and Mullins and Flynn, Js.
Argued April 13—officially released October 11, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Stephen J. Sedensky III, state’s attor-
ney, and Jo Anne Sulik, supervisory assistant state’s
attorney, for the appellant (respondent).
Michael W. Brown, for the appellee (petitioner).
Opinion
DiPENTIMA, C. J. The respondent, the Commissioner
of Correction, appeals from the judgment of the habeas
court granting the petition for a writ of habeas corpus
filed by the petitioner, Leonardo Nogueira. On appeal,
the issue before this court is whether the habeas court
properly determined that the respondent had failed to
establish, beyond a reasonable doubt, that the result in
the petitioner’s 2002 criminal trial for kidnapping in the
first degree would have been the same had the criminal
trial court applied the interpretation of kidnapping sub-
sequently adopted by our Supreme Court in State v.
Salamon, 287 Conn. 509, 949 A.2d 1092 (2008).1 We
disagree with the conclusion of the habeas court, and,
accordingly, reverse the judgment granting the petition
for a writ of habeas corpus.
The following facts and procedural history are rele-
vant to our discussion. Following a trial to the court,
the petitioner was convicted of kidnapping in the first
degree in violation of General Statutes § 53a-92 (a) (2)
(A), sexual assault in the first degree in violation of
General Statutes § 53a-70 (a) (1), attempt to commit
sexual assault in the first degree in violation of General
Statutes §§ 53a-70 (a) (1) and 53a-49 (a) (2), assault in
the third degree in violation of General Statutes § 53a-61
(a) (1) and threatening in violation of General Statutes
(Rev. to 1999) § 53a-62 (a) (1). State v. Nogueira, 84
Conn. App. 819, 820, 856 A.2d 423 (2004), cert. denied,
273 Conn. 927, 873 A.2d 1000 (2005). Following the
petitioner’s conviction, the court, White, J., sentenced
him to thirty-five years incarceration. Id., 822.
These criminal charges stemmed from an incident
that occurred on November 11, 2000, in Danbury when
the victim was attacked by the petitioner at approxi-
mately 9 p.m. Id., 821. The petitioner grabbed the legs
of the victim, dragged her along the sidewalk and forced
her into a window well where he sexually assaulted
her for two hours. Id. The victim escaped from the
window well and fled from the petitioner, who pursued
her. Id. She grabbed onto a telephone pole, but the
petitioner strangled her, causing her to loosen her grip.
Id. He then hauled her between two houses, and kept
her in that location for a period of five to ten minutes.
The petitioner absconded upon the arrival of the police.
Id.2 We affirmed the judgment of conviction on direct
appeal. Id., 826.
Following his conviction and direct appeal, our
Supreme Court ‘‘issued two watershed decisions per-
taining to kidnapping crimes, State v. Salamon, [supra,
287 Conn. 509], and Luurtsema v. Commissioner of
Correction, 299 Conn. 740, 12 A.3d 817 (2011).’’ Wilcox
v. Commissioner of Correction, 162 Conn. App. 730,
736, 129 A.3d 796 (2016). Stated succinctly, ‘‘[p]ursant
to the holdings of these decisions, a defendant who has
been convicted of kidnapping may collaterally attack
his kidnapping conviction on the ground that the trial
court’s jury instructions failed to require that the jury
find that the defendant’s confinement or movement of
the victim was not merely incidental to the defendant’s
commission of some other crime or crimes.’’ Id.3
The petitioner filed a petition for a writ of habeas
corpus alleging ineffective assistance of both his trial
and appellate counsel. Following a habeas trial, the
court, Nazzaro, J., issued a memorandum of decision
denying the petition. Nogueira v. Warden, Superior
Court, judicial district of Tolland, Docket No. CV-06-
4001062, 2011 WL 3890968 (July 22, 2011).4 The habeas
court then denied certification to appeal. We subse-
quently dismissed the petitioner’s appeal. Nogueira v.
Commissioner of Correction, 142 Conn. App. 906, 64
A.3d 1289, cert. denied, 309 Conn. App. 902, 68 A.3d
657 (2013).
The petitioner commenced a second habeas action
and filed an amended petition for a writ of habeas
corpus on April 8, 2015. In count one, the petitioner
alleged that his conviction of kidnapping in the first
degree violated his right to due process because there
was no specific finding by Judge White in his criminal
trial that he had intended to prevent the victim’s libera-
tion for a longer period of time than was necessary to
commit the crime of sexual assault in the first degree. In
counts two and three, the petitioner alleged ineffective
assistance of his first habeas counsel and his appellate
habeas counsel.5 The respondent filed an answer and
raised the affirmative defense of procedural default as
to count one. The petitioner filed a response, arguing
that (1) he was not procedurally defaulted and (2) in
the alternative, if count one of the petition was subject
to a procedural default, then he satisfied the cause and
prejudice requirement.
At the habeas trial on May 27, 2015, the parties agreed
that the court should consider the ‘‘criminal trial tran-
scripts, direct appeal materials, first habeas trial tran-
scripts, and pleadings and the habeas appeal materials
as well.’’ Additionally, the parties agreed that no addi-
tional testimony was necessary. Counsel for the peti-
tioner explained that because the petitioner’s
conviction occurred in a trial to the court, rather than
a jury, his claim was not a jury instruction issue, but
rather a ‘‘Salamon fact-finding issue.’’
On June 10, 2015, the court, Cobb, J., issued its memo-
randum of decision, concluding that the petitioner’s
constitutional right to due process was violated as a
result of the criminal court’s failure to apply the Sala-
mon standard for kidnapping that was made retroactive
to habeas proceedings in Luurtsema v. Commissioner
of Correction, supra, 299 Conn. 740. The habeas court
granted the petition for a writ of habeas corpus, vacated
the petitioner’s conviction of kidnapping and remanded
the case to the criminal trial court for a new trial on
the kidnapping charge.
The habeas court stated the petitioner’s claim as fol-
lows: ‘‘[H]is rights to due process of law pursuant to the
fourteenth amendment to the United States constitution
and article first, §§ 8 and 9, of the Connecticut constitu-
tion were violated because he was convicted of kidnap-
ping absent a finding by the fact finder, in this case the
[criminal] trial court, that the victim was restrained
to an extent exceeding that which was necessary to
accomplish or complete the crime of sexual assault,
and other crimes, as now required by State v. Salamon,
supra, 287 Conn. 509.’’
The habeas court stated that it was undisputed in the
present case that Judge White, in 2002, had not applied
the Salamon standard, which was not part of our law
until 2008, in finding the petitioner guilty of kidnapping
in the first degree. ‘‘In particular, the [criminal] trial
court did not consider whether the petitioner intended
to move or confine the victim in a way that had indepen-
dent criminal significance, that is, that the victim was
restrained to an extent exceeding that which was neces-
sary to accomplish or complete the other crime, in this
case the sexual assaults and other crimes.’’ The habeas
court, therefore, concluded that the petitioner had suf-
fered a violation of his due process rights. It then
rejected the respondent’s affirmative defense of proce-
dural default.6 For a remedy, it followed Luurtsema v.
Commissioner of Correction, supra, 299 Conn. 740, and
ordered that the case be returned to the criminal trial
court for a new trial on the charge of kidnapping in the
first degree. On June 22, 2015, the respondent filed a
petition for certification to appeal, which the habeas
court granted. This appeal followed. Additional facts
will be set forth as necessary.
After this court heard oral argument in the present
case, our Supreme Court released its decision in Hinds
v. Commissioner of Correction, 321 Conn. 56, 136 A.3d
596 (2016). That decision contains a historical review
of the changes to our kidnapping law and establishes
the proper test for determining whether the failure to
apply the Salamon standard constituted harmless error.
Accordingly, a detailed review of Hinds will facilitate
our analysis of the respondent’s appeal in the case
before us.
In Hinds, the court began by noting that the hallmark
of the crime of kidnapping ‘‘is an abduction, a term
that is defined by incorporating and building upon the
definition of restraint.’’ Id., 66–67. It then turned to State
v. Chetcuti, 173 Conn. 165, 170–71, 377 A.2d 263 (1977),
in which the court had rejected the claim that if the
abduction and restraint of a victim are merely incidental
to another crime, that abduction and restraint cannot
support a conviction of kidnapping. Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 67. ‘‘The court
pointed to the fact that our legislature had declined to
merge the offense of kidnapping with sexual assault or
with any other felony, as well as its clearly manifested
intent in the kidnapping statutes not to impose any time
requirement for the restraint or any distance require-
ment for the asportation.’’ Id. Despite a number of chal-
lenges over the years, our Supreme Court consistently
maintained that position with respect to the kidnapping
statute. Id., 67–68.
In State v. Salamon, supra, 287 Conn. 509, however,
our Supreme Court reexamined its interpretation of the
crime of kidnapping, and reached a conclusion contrary
to three decades of its prior holdings. Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 68. The court in
Salamon explained: ‘‘Upon examination of the common
law of kidnapping, the history and circumstances sur-
rounding the promulgation of our current kidnapping
statutes and the policy objectives animating those stat-
utes, we now conclude the following: Our legislature,
in replacing a single, broadly worded kidnapping provi-
sion with a gradated scheme that distinguishes kidnap-
pings from unlawful restraints by the presence of an
intent to prevent a victim’s liberation, intended to
exclude from the scope of the more serious crime of
kidnapping and its accompanying severe penalties
those confinements or movements of a victim that are
merely incidental to and necessary for the commission
of another crime against that victim. Stated otherwise,
to commit a kidnapping in conjunction with another
crime, a defendant must intend to prevent the victim’s
liberation for a longer period of time or to a greater
degree than that which is necessary to commit the other
crime.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 68–69.
The court in Hinds then turned to Luurtsema v.
Commissioner of Correction, supra, 299 Conn. 740,
which had concluded ‘‘as a matter of state common
law that policy considerations weighed in favor of retro-
active application of Salamon to collateral attacks on
judgments rendered final before that decision was
issued.’’ Hinds v. Commissioner of Correction, supra,
321 Conn. 69. With those principles in mind, the court
addressed the issue of whether the petitioner’s Salamon
claim was subject to the doctrine of procedural default7
as a result of his failure to challenge the kidnapping
instruction at his criminal trial. Id., 70. Ultimately, our
Supreme Court concluded that a Salamon claim, as
raised by the petitioner, was not subject to procedural
default. Id., 76.
The court proceeded to the question of whether the
petitioner was entitled to a new trial as a result of
the omission of the proper instruction on kidnapping
pursuant to Salamon. Id. It determined that the proper
test to apply was the harmless error standard applied
on a direct appeal to a claim that an essential element
is absent from a jury instruction. Id., 76–77. ‘‘On direct
appeal, [i]t is well established that a defect in a jury
charge which raises a constitutional question is revers-
ible error if it is reasonably possible that, considering
the charge as a whole, the jury was misled. . . . [T]he
test for determining whether a constitutional error is
harmless . . . is whether it appears beyond a reason-
able doubt that the error complained of did not contrib-
ute to the verdict obtained. . . . A jury instruction that
improperly omits an essential element from the charge
constitutes harmless error [only] if a reviewing court
concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelm-
ing evidence, such that the jury verdict would have
been the same absent the error . . . . The failure to
charge in accordance with Salamon is viewed as an
omission of an essential element . . . and thus gives
rise to constitutional error.’’ (Citations omitted; internal
quotation marks omitted.) Id., 77–78. Following a con-
sideration of the factors set forth in Salamon as applied
to the facts, the court in Hinds concluded that the
omission of the required instruction was not harmless
beyond a reasonable doubt. Id., 78–81.
Before considering the present case in light of the
controlling principles set forth in Hinds, we address
one characteristic distinguishing it from the majority
of post-Salamon appellate cases. In this matter, the
petitioner was convicted following a trial to the court,
whereas most of the post-Salamon cases have involved
jury trials. One exception, however, is State v. Thomp-
son, 118 Conn. App. 140, 983 A.2d 20 (2009), cert. denied,
294 Conn. 932, 986 A.2d 1057 (2010). In that case, the
defendant was convicted of kidnapping in the first
degree, sexual assault in the first degree and attempt
to commit sexual assault in the first degree. Id., 142–43.
On appeal, he argued, inter alia, that his conviction
of kidnapping in the first degree should be reversed
following the new interpretation of that crime. Id., 143.
In the context of a trial to the court, we stated that
‘‘the court was required to have made a specific factual
finding, if it determined that such a finding was justified
by the evidence, that the defendant . . . must have
intend[ed] to prevent the victim’s liberation for a longer
period of time or to a greater degree than that which
[was] necessary to commit the other crime.’’ (Internal
quotation marks omitted.) Id., 161. We also described
a ‘‘Salamon finding’’ as ‘‘one that, when reasonably
supported by the evidence, the restraint was or was
not merely incidental to some other, separate crime.’’
Id., 161 n.10.
Our task, therefore, is to examine the facts of the
present case through the analytical lens of Hinds v.
Commissioner of Correction, supra, 321 Conn. 56, to
determine if the absence of a specific factual finding
as required by Salamon constituted harmless error. Our
standard of review is well established. ‘‘[W]hile [t]he
underlying historical facts found by the habeas court
may not be disturbed unless the findings were clearly
erroneous . . . [q]uestions of law and mixed questions
of law and fact receive plenary review.’’ (Internal quota-
tion marks omitted.) Id., 65; see also Farmer v. Com-
missioner of Correction, 165 Conn. App. 455, 459, 139
A.3d 767 (2016) (applicability of Salamon and whether
trial court’s failure to give Salamon instruction was
harmless error constitute issues of law subject to ple-
nary review).
The issue of whether the movement or confinement
of a victim merely was incidental to and necessary for
another crime, such as sexual assault, is dependent
on the facts and circumstances of each case. State v.
Salamon, supra, 287 Conn. 547; see also State v. Hamp-
ton, 293 Conn. 435, 460, 988 A.2d 167 (2009); Wilcox v.
Commissioner of Correction, supra, 162 Conn. App.
743; Eric M. v. Commissioner of Correction, 153 Conn.
App. 837, 843–44, 108 A.3d 1128 (2014), cert. denied,
315 Conn. 915, 106 A.3d 308 (2015). Accordingly, we
begin with a detailed recitation of the facts of the pre-
sent case.
In a long form information dated October 25, 2001,
the state charged the petitioner with kidnapping in the
first degree as follows: ‘‘In the Superior Court of the
State of Connecticut at Danbury, Warren Murray, Super-
visory Assistant State’s Attorney for the Judicial District
of Danbury, accuses [the petitioner] of the crime of
Kidnapping in the First Degree. It is further charged
that in the city of Danbury, Connecticut, on or about
the 11th day of November 2000, the said [petitioner],
abducted another person, and restrained the person
abducted with the intent to sexually abuse that person
in violation of Connecticut General Statutes Section
53a-92 (a) (2) (A). This crime occurred in the vicinity
of West and Harmony Streets.’’ The state also charged
the petitioner with sexual assault in the first degree by
means of fellatio, attempt to commit sexual assault in
the first degree by means of vaginal penetration, assault
in the third degree and threatening.
On April 12, 2002, at the conclusion of the petitioner’s
criminal trial, the court issued an oral decision finding
him guilty on all charges. Specifically, the court stated:
‘‘I will indicate that my decision’s based on my review
of the entire evidence, the testimony of all the wit-
nesses, as well as the exhibits, and I will make some
general findings of fact here. And I want to make it
clear that my decision isn’t limited to the findings I’m
going to make now, but I will mention some factual
findings specifically, but I’ve relied on others as well.
‘‘On or about November 11, 2000, at between 8 p.m.
and 9 p.m. in the evening, on the—on or near the corner
of West Avenue and Harmony Street here in Danbury,
the victim . . . was walking in the direction of the
Food Bag store and encountered the [petitioner] while
he was riding on his bicycle.
‘‘At that time, the [petitioner] attempted to engage
the victim in conversation. The victim indicated that
she was not interested in engaging in a conversation
and attempted to leave. And at that time the [petitioner]
got off of his bicycle, physically grabbed the victim by
the legs, dragged her along the ground for a distance
of approximately 113 feet to a window well adjacent
to a nearby church. The [petitioner] forced the victim
into the window well and kept her there for a period
of time between an hour-and-a-half and two hours.
‘‘Now, during that encounter, the victim was forced
to remove her clothing. She lowered her pants part way,
and after she did that the [petitioner] knocked her to
the ground and got on top of her and tried to insert his
penis into her vagina. As he was doing that, the victim
was struggling and screaming, scratching and clawing,
but the [petitioner] use[d] superior strength to hold her
down in this effort to, as I said, insert his penis into
her vagina.
‘‘During the course of their time in the window well,
the [petitioner] also grabbed the victim by the hair and
forced her head down to his groin area. And on a mini-
mum—or at a minimum of three times, forced her head
on—or her mouth onto his penis and inserted in—his
penis was inserted into her mouth.
‘‘Also, during the course of the encounter, the victim
attempted to escape, repeatedly, and repeatedly the
[petitioner] physically stopped her from leaving and, in
fact, at one point threatened to kill her and told her that
he wasn’t going to let her leave until he was finished.
‘‘Well, at some point after, a dark-haired Hispanic
male encountered the [petitioner] and the victim, and
engaged the [petitioner] in some altercations. The vic-
tim finally managed to escape, but was chased by the
[petitioner]. And at or about the corner of West Street
and Harmony Street, the victim threw herself on the
hood of a maroon car driven by Michelle Emmanuel,
who was with her boyfriend at the time, and who saw
the [petitioner] chasing after the victim. The victim at
the time was screaming for help.
‘‘Michelle Emmanuel locked the doors to her car, but
continued to watch what was going on. And she says
that the—well, the evidence establishes that the victim
again tried to get away from the [petitioner]. She ran
to a nearby telephone pole or utility pole and held onto
it. The [petitioner] pried her from the pole, dragged her
to a nearby area between a white house and a detached
garage, and appeared to again attempt to sexually
assault her.
‘‘At the time of the encounter between the house and
the garage, Ms. Emmanuel was flashing her lights in
the [petitioner’s]—in the victim’s direction and honking
her horn. [The petitioner] looked at her but continued
doing what he was doing. Ms. Emmanuel called the
police who arrived shortly thereafter. . . .
‘‘So, those are some preliminary findings—or general
findings of facts. As I indicated, I want to make it clear
those aren’t the only facts that I’m relying on in making
my decision, but I will mention those things specifi-
cally. . . .
‘‘Now, the [petitioner] is charged with the crime of
kidnapping in the first degree in violation of § 53a-92
(a) (2) of the Penal Code, which provides as follows:
A person is guilty of kidnapping in the first degree when
he abducts another person and he restrains the person
abducted with the intent to abuse her sexually. . . .
‘‘In this case, the credible evidence establishes
beyond a reasonable doubt that the [petitioner]
abducted the victim, unlawfully restrained her, and
restrained her with the intent to sexually abuse her.
The [petitioner], without the victim’s consent, and
against her will, physically held her by her legs, dragged
her body from a sidewalk on West Street into a window
well of a nearby church and forced her to remain there
for close to two hours while he repeatedly forced his
penis into her mouth. He told her that he would not let
her leave until he was finished and said he would kill
her if she did not stop screaming.
‘‘In addition, the [petitioner], while in the window
well with the victim, initiated contact between his penis
and her vagina in an attempt to engage in sexual inter-
course with her. The evidence clearly establishes each
of the elements of kidnapping in the first degree, and
the court therefore finds the [petitioner] guilty of that
charge. That’s the first count. . . .
‘‘The credible evidence in this case establishes that
the [petitioner] compelled the victim to engage in sexual
intercourse in the form of fellatio and that the sexual
intercourse in the form of fellatio was accomplished
by the use of force against the victim.
‘‘When the [petitioner] and the victim were in the
window well together for nearly two hours, the [peti-
tioner] on three occasions held the victim by the hair,
physically forced her head down to his groin area and
inserted his penis into her mouth. The victim screamed
for help, struggled with the [petitioner], and repeatedly
tried to escape, but the [petitioner] used violence to
prevent her from leaving, as he repeatedly forced her
to engage in sexual intercourse by way of fellatio. . . .
‘‘The [petitioner] dragged the victim against her will
from an area on West Street into a window well of a
nearby church and threw her to the ground after she
lowered her pants. He then held her down by placing
his body on top of her, and initiated contact between
her vagina and his penis without her consent. When
the [petitioner’s] penis touched the victim’s vagina, the
victim was moving around in order to prevent him from
penetrating her vagina with it.
‘‘During the course of the attack the [petitioner] told
the victim that if she did not stop screaming he would
kill her and that he would not release her until he was
finished. When the victim repeatedly tried to escape
from the window well, the [petitioner] physically pre-
vented her from leaving. . . .
‘‘During the encounter between the [petitioner] and
the victim, the [petitioner] dragged the victim’s body
along the ground, pulled her hair, threw her to the
ground, bit her breasts, choked her, physically fought
with her, and attempted to insert his penis into her
vagina. As a result of the [petitioner’s] conduct, the
victim suffered numerous scrapes, bruises, abrasions,
trauma, and experienced pain. The [petitioner’s] con-
scious objective to engage in the aforementioned con-
duct, causing physical injury to the victim, was his
desire to sexually assault her—or, I should say, the
[petitioner’s] motivation in consciously engaging in the
conduct that I mention, was to sexually assault her.
. . .
‘‘In this case, the credible evidence establishes
beyond a reasonable doubt that the [petitioner] is guilty
of [the crime of threatening]. The [petitioner] used phys-
ical force to keep the victim in the church window well
for close to two hours while he forced her to perform
oral sex on him and attempted to have vaginal inter-
course with her, all against her will and without her
consent.
‘‘During the course of the attack, the [petitioner] told
the victim he would not release her until he was finished
and that he would kill her if she did not stop screaming.
The victim repeatedly tried to escape from the [peti-
tioner], but was unable to do so because he used vio-
lence to stop her. When the [petitioner] told the victim
he would kill her, it was his conscious objective to
place her in fear of imminent serious physical injury.
She was frightened by the [petitioner’s] conduct, and
his actions in sexually assaulting her and physically
assaulting her indicated his intent and ability to carry
out his threat.’’
Certain evidence not mentioned in the court’s oral
decision describing the window well is pertinent to our
analysis. One of the police officers testified that the
window well in question was eight feet long, two feet
and four inches wide, and four and one-half feet deep.
The bottom of the window well was lined with rocks.
This testimony was not challenged or refuted during
the trial.
We now return to the seminal case of State v. Sala-
mon, supra, 287 Conn. 509, which established the new
interpretation of our kidnapping statutes. In that case,
our Supreme Court concluded that the legislature
‘‘intended to exclude from the scope of the more serious
crime of kidnapping and its accompanying severe penal-
ties those confinements or movements of a victim that
merely are incidental to and necessary for the commis-
sion of another crime against that victim. Stated other-
wise, to commit a kidnapping in conjunction with
another crime, a defendant must intend to prevent the
victim’s liberation for a longer period of time or to a
greater degree than that which is necessary to commit
the other crime.’’ Id., 542. It also noted that its holding
did not amount to a ‘‘complete refutation’’ of the princi-
ples established in our prior kidnapping law. Id., 546.
‘‘First, in order to establish a kidnapping, the state
is not required to establish any minimum period of
confinement or degree of movement. When that con-
finement or movement is merely incidental to the com-
mission of another crime, however, the confinement or
movement must have exceeded that which was neces-
sary to commit the other crime. [T]he guiding principle
is whether the [confinement or movement] was so much
the part of another substantive crime that the substan-
tive crime could not have been committed without such
acts . . . . In other words, the test . . . to determine
whether [the] confinements or movements involved
[were] such that kidnapping may also be charged and
prosecuted when an offense separate from kidnapping
has occurred asks whether the confinement, movement,
or detention was merely incidental to the accompanying
felony or whether it was significant enough, in and of
itself, to warrant independent prosecution. . . .
‘‘Conversely, a defendant may be convicted of both
kidnapping and another substantive crime if, at any
time prior to, during or after the commission of that
other crime, the victim is moved or confined in a way
that has independent criminal significance, that is, the
victim was restrained to an extent exceeding that which
was necessary to accomplish or complete the other
crime. Whether the movement or confinement of the
victim is merely incidental to and necessary for another
crime will depend on the particular facts and circum-
stances of each case. Consequently, when the evidence
reasonably supports a finding that the restraint was not
merely incidental to the commission of some other,
separate crime, the ultimate factual determination must
be made by the jury. For purposes of making that deter-
mination, the jury should be instructed to consider the
various relevant factors, including the nature and dura-
tion of the victim’s movement or confinement by the
defendant, whether that movement or confinement
occurred during the commission of the separate
offense, whether the restraint was inherent in the nature
of the separate offense, whether the restraint prevented
the victim from summoning assistance, whether the
restraint reduced the defendant’s risk of detection and
whether the restraint created a significant danger or
increased the victim’s risk of harm independent of that
posed by the separate offense. (Citations omitted;
emphasis in original; footnotes omitted; internal quota-
tion marks omitted.) Id., 546–48.
The court in Salamon also affirmed the general prin-
ciple that an individual could be charged with and con-
victed of more than one crime arising from the same
act or acts, so long as all of the elements of each crime
were proven. Id., 548. Last, it noted the limited applica-
bility of the new rule established: ‘‘[O]ur holding is
relatively narrow and directly affects only those cases
in which the state cannot establish that the restraint
involved had independent significance as the predicate
conduct for a kidnapping. We therefore do not antici-
pate that our holding will force a major shift in prosecu-
torial decision making.’’ Id.
As previously stated, the question of whether the
movement or confinement of a victim merely was inci-
dental to and necessary for another crime, such as sex-
ual assault, is dependent on the facts and circumstances
of each case. To that end, we examine the decisions
from our Supreme Court and this court that have consid-
ered the issue of whether the failure to apply Salamon
constituted harmless error. We first discuss the cases
that have determined that the absence of the Salamon
rule amounted to harmless error, and then consider
those that reached a contrary conclusion and required
a new trial.
We begin with State v. Hampton, supra, 293 Conn.
438, in which the defendant claimed in his direct appeal
that his convictions for kidnapping in the first degree
and conspiracy to commit kidnapping in the first degree
should be reversed on the basis of Salamon. In Hamp-
ton, the defendant was with his friend, James Mitchell,
who received a telephone call from the victim
requesting a ride home. Id., 439. After picking her up,
the three individuals went to a restaurant. Despite tell-
ing the victim that he would drive her home, Mitchell
began angrily asking her about her brother. Id. Despite
the pleas of the victim, the defendant and Mitchell
refused to take her home and instead drove around for
approximately three hours. Id. After parking at a closed
gas station, where it was dark, Mitchell ordered her out
of the car and the defendant pointed a shotgun at her
face. Id. Mitchell then sexually assaulted her, and, after-
ward, both Mitchell and the defendant shot her. Id., 440.
On appeal, our Supreme Court agreed with the state
that the failure to give the Salamon instruction was
harmless because it was clear ‘‘beyond a reasonable
doubt that the jury’s verdict would have been the same
in the absence of the impropriety.’’ Id., 462. It reasoned
that there was no evidence in the record that could
rationally lead a jury to a reach a contrary finding that
the restraint of the victim by the defendant was inciden-
tal to or inherent in the other crimes. Id., 463. There
was a three hour time period from when the defendant
and Mitchell had picked up the victim to the commission
of the sexual assault and shooting. Id., 463–64. ‘‘The
passage of this substantial period of time, which was
uncontested by the defendant at trial, clearly shows the
defendant’s intent to prevent the victim’s liberation for
a longer period of time or to a greater degree than
that necessary to commit the subsequent crimes. His
restraint of the victim was not incidental to any addi-
tional offenses.’’ (Emphasis in original.) Id., 464.
In Eric M. v. Commissioner of Correction, supra,
153 Conn. App. 839, the petitioner and the victim were
in the process of ending their marriage. The petitioner
lured the victim into the basement of the marital home
where, after forcing her to the ground, he ordered her
to put on handcuffs. Id. After binding and gagging her
for a period of time, he released her to use the bathroom,
and then sexually assaulted her. Id., 839–40. The victim
was able to run out of the bathroom, but was tackled
and choked unconscious by the petitioner, at which
point she fell through a glass storm door. Id., 840. The
petitioner then tied her to a bed, where the victim was
able to call the police. Id. The petitioner was convicted
of two counts of kidnapping in the first degree, unlawful
restraint in the first degree, assault in the second degree
and sexual assault in a spousal relationship, and this
court affirmed his conviction. State v. Eric M., 79 Conn.
App. 91, 829 A.2d 439 (2003), aff’d, 271 Conn. 641, 858
A.2d 767 (2004).
The petitioner then commenced a habeas action,
arguing that his constitutional right to due process was
violated because had the jury in his criminal trial been
given a Salamon instruction, it would not have found
him guilty of two counts of kidnapping in the first
degree. Eric M. v. Commissioner of Correction, supra,
153 Conn. App. 841–42. Both the petitioner and the
Commissioner of Correction filed motions for summary
judgment, and the habeas court granted the latter’s
motion. Id., 842. It concluded that there was sufficient
evidence in the record to show that the restraints
imposed on the victim were not incidental to any other
crime, and, therefore the failure to give the Salamon
instruction was harmless beyond a reasonable doubt.
Id.
On appeal, we noted that the test for determining
harmlessness was ‘‘whether it appears beyond a reason-
able doubt that the [impropriety] complained of did not
contribute to the verdict obtained.’’ (Internal quotation
marks omitted.) Id., 845. We also noted the observation
in Luurtsema v. Commissioner of Correction, supra,
299 Conn. 769–70, that ‘‘courts will be able to dispose
summarily of many cases where it is sufficiently clear
from the evidence presented at trial that the petitioner
was guilty of kidnapping, as properly defined, [and] that
any error arising from a failure to instruct the jury in
accordance with the rule in Salamon was harmless.’’
(Internal quotation marks omitted.) Eric M. v. Commis-
sioner of Correction, supra, 153 Conn. App. 845. In
reviewing the facts from the criminal trial, we noted
that the petitioner had sexually assaulted the victim
for a few minutes, while the restraint had lasted for
approximately five hours. Id., 846. Thus, under these
facts, the failure to give the Salmon instruction was
harmless beyond a reasonable doubt. Id., 847.
In State v. Jordan, 129 Conn. App. 215, 217, 19 A.3d
241, cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011), the
defendant entered the bedroom of his former romantic
partner, D, and her new boyfriend, E. The defendant
beat E with a stick, and pulled D back into the bedroom
by her hair. Id. He then incapacitated D by striking her
in the head with the stick. Id. The defendant continued
to savagely assault E by using a mop handle to sodomize
him while D was directed to clean the blood off the
walls. Id., 217–18. The defendant threatened D with
a gun and struck E in the head with it. Id., 218. He
subsequently was convicted of one count of burglary,
two counts of kidnapping in the second degree, two
counts of assault in the first degree and one count of
sexual assault in the first degree. Id., 216.
On appeal, the defendant claimed that he was entitled
to a new trial on the kidnapping charges as a result of the
failure of the court to provide the jury with a Salamon
instruction. Id., 219. The state countered that although
such an instruction was required, the court’s failure to
do so amounted to harmless error ‘‘because the state
offered sufficient evidence such that no reasonable jury
could have concluded that the restraint of the victims
by the defendant was merely incidental to the other
crimes of assault and sexual assault.’’ Id.
The defendant argued that ‘‘the entire forty-five
minute confinement of the victims was comprised of
the defendant’s assaultive action. There was, therefore,
no period of time during which the victims were
restrained for a greater degree than was necessary to
commit the assaults.’’ Id., 222. We iterated that, even
subsequent to Salamon, the crime of kidnapping does
not require a minimum period of confinement. Id.
Instead, we determined that the evidence reasonably
could not support the conclusion that the restraint of
the victims by the defendant was merely incidental to
the assaults and the sexual assault. Id. Specifically, we
concluded that he had restricted the movement of the
victims to a far greater degree than necessary to assault
them. Id. Further, while he was assaulting one victim,
the other was not free to leave, and when neither was
being assaulted, he controlled their movement by not
allowing them to leave. Id., 222–23.
In State v. Strong, 122 Conn. App. 131, 134, 999 A.2d
765, cert. denied, 298 Conn. 907, 3 A.3d 73 (2010), the
defendant was convicted of a multitude of crimes,
included kidnapping in the first degree and threatening
in the second degree. The victim and the defendant,
whose marriage was ‘‘plagued by violence,’’ had sepa-
rated. Id. The defendant requested the victim to meet
him in a parking lot. Id. Eventually he retrieved a pistol
and threatened to kill her if she did not follow his
instructions. Id., 134–35. After ordering her to drive to
a desolate area, the defendant then ordered her to drive
to the home of one of his friends. Id., 135. The defendant
told the victim that his friends were ‘‘going to rape her.’’
Id. The defendant held her there for more than one
hour before returning her to the parking lot. Id., 135–36.
The defendant continued terrorizing her that night and
the next morning, including running her car off the road
when she was driving to work. Id., 136.
On appeal, we considered the issue of whether the
lack of the Salamon instruction, under these facts,
amounted to harmless error. Id., 139. In answering that
question in the affirmative, we concluded that the ver-
dict would have been the same in the absence of the
claimed impropriety. Id., 142. Specifically, we pointed
to the overwhelming evidence of kidnapping as a result
of the defendant’s having ordered the victim to drive
from the parking lot to the friend’s house and having
held her against her will in the car. Id., 143. The evidence
of threatening consisted of his threat to kill her, repeat-
edly yelling at her, and the threat that his friends would
sexually assault her. Id. ‘‘The defendant’s prolonged
restraint of the victim in her car while forcing her to
drive . . . and while forcing her to remain in the car
reasonably could not be considered merely incidental
to either of the threatening charges.’’ Id. Put another
way, there was no evidence that rationally could have
led the jury to conclude that the restraint was inherent
in or incidental to the threatening. Id.
In State v. Nelson, 118 Conn. App. 831, 833, 986 A.2d
311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010),
the defendant was convicted of the crimes of kidnap-
ping, assault and burglary. As the victim entered his
apartment, he was ambushed by the defendant and an
accomplice, and was bound at the hands and feet. Id.,
834. The assailants struck the victim, demanded money,
and tortured him by burning his face and abdomen. Id.
After approximately one hour, the assailants placed the
victim in an automobile and drove around looking for
an individual who owed the victim money. Id., 835. After
an additional assault, the victim was left partially bound
in his automobile near a high school. Id., 836. These
events occurred over nearly five hours. Id.
On appeal, we agreed with the defendant that the
jury should have received the Salamon instruction. Id.,
860. The state argued that this error was harmless
because the victim had been restrained for several
hours after the completion of the assault. Id. In affirming
the defendant’s conviction of kidnapping, we noted:
‘‘The substantial length of the victim’s restraint follow-
ing the assaultive conduct by the defendant is signifi-
cant to our analysis. The defendant’s restraint during
such a substantial amount of time is overwhelming evi-
dence of the defendant’s intent to prevent the victim’s
liberation for a longer period of time than that necessary
for the commission of any other crime. Stated other-
wise, after reviewing all of the evidence presented, we
do not believe that a rational jury could find that the
defendant’s restraint of the victim was inherent in, or
incidental to, assault or any other crime.’’ Id., 861.
We also are guided by our Supreme Court’s decision
in State v. Ward, 306 Conn. 718, 725–26, 51 A.3d 970
(2012), a case in which the trial court granted the defen-
dant’s motion for a judgment of acquittal following the
jury’s finding of guilt on the charges of sexual assault
in the first degree and kidnapping in the first degree.
In Ward, the victim was alone in her rural home when
the defendant, who was nearly double her size,
requested water for his overheated vehicle. Id., 722.
When he returned for additional water, he pushed open
the door, grabbed a metal knife sharpening tool,
wrapped his arms around the victim and threatened to
kill her if she did not follow his instructions. Id. 723.
With the sharpening tool held to the victim’s neck, the
defendant dragged her down the hallway and into the
master bedroom. Id. Once there, he pushed the victim
onto the bed, removed some of her clothes, and then
pulled her to the floor. Id., 723–24. He then sexually
assaulted her. Id., 724.
The trial court provided the jury with the Salamon
instruction. Id., 726. After the jury found the defendant
guilty on both counts, the court granted the defendant’s
motion for a judgment of acquittal as to the kidnapping
charge on the basis of Salamon. Id., 725. Specifically,
the trial court concluded that ‘‘no reasonable jury could
have found under [the facts adduced at trial] that the
defendant kidnapped the victim as defined by our stat-
utes.’’ (Internal quotation marks omitted.) Id., 725–26.
The trial court emphasized that the incident occurred
during a ten to twenty minute time period, the relatively
small size of the victim’s home, the minimal movement
from the kitchen to the bedroom, and the incidental
and minimal use of the weapon. Id., 728.
In reviewing the granting of the motion for a judgment
of acquittal, our Supreme Court, after noting that it was
a close case, concluded that the jury, having received
the Salamon instruction, reasonably could have found
that the confinement or movement of the victim was
not merely incidental to the sexual assault. Id., 736.
Specifically, it noted that the victim could not escape
from the defendant, who was twice her size and who
held her very tightly. Id. The movement of the victim
from the kitchen door made the chance of escape more
remote. Id. The defendant could have sexually assaulted
her without threatening to kill her or without holding
the weapon to her neck, and therefore, the force used
by the defendant exceeded that which was necessary
to commit the sexual assault. Id. The conduct of the
defendant was intended to frighten and subdue the vic-
tim so as to prevent her from struggling, seeking assis-
tance or attempting to escape. Id. Further, the use of
the weapon increased the risk of harm to the victim,
and movement from the kitchen door made it less likely
that the criminal conduct would be detected. Id., 736–
37. Last, had the defendant intended to move her to a
location more comfortable for him, he could have
placed her on the bed; instead, he eventually pulled her
to the floor before sexually assaulting her. Id., 737.
‘‘In short, although the defendant did not confine
the victim for a lengthy period of time or move her a
significant distance, the facts and circumstances of the
present case, considered as a whole, support the jury’s
determination that the restraint of the victim was not
merely incidental to or an inherent part of the sexual
assault. Our decision is not based on any single fact,
but on the cumulative effect of the evidence adduced at
trial.’’ (Footnote omitted.) Id., 738. Our Supreme Court
noted that in the absence of even one of the facts relied
upon by the state in its argument, it may have reached
a different result. Id., 738 n.12.
To complete our analysis of the parameters of the
harmless error inquiry under Hinds, we now turn to
the cases in which a reviewing court determined that the
failure to apply the Salamon standard was not harmless
and required a new trial. For example, in State v. Fields,
302 Conn. 236, 238, 24 A.3d 1243 (2011), the defendant
was convicted, inter alia, of two counts of kidnapping
in the second degree and one count of assault in the
first degree. One of the victims, Marilyn Cortes, ended
an abusive relationship with the defendant and lived
with, inter alia, her daughter and her daughter’s brother-
in-law, Taoufik Razek. Id., 239–40. The defendant
entered Cortes’ new residence without permission and
stole $500. Id., 240–41. The next day, the defendant
promised to return the money to Razek at a coffee shop;
this, however, was a ruse to get him out of the residence.
Id., 241–42. The defendant then went to the residence
and forced Cortes at gunpoint to the bedroom, where
he bound her wrists and covered her mouth with duct
tape. Id., 242. He then drove Cortes to a gas station
to pick up an accomplice, and then returned to the
residence. Id.
Razek subsequently returned to the residence and
was physically assaulted by the defendant. Id., 242–43.
The defendant then struck Cortes in the face after she
had been prevented by the accomplice from calling the
police. Id., 243. After the defendant threatened to kill
Razek, a towel was wrapped over Razek’s head and he
was placed into the backseat of a car. Id. Razek man-
aged to escape from the car and call the police. Id.,
243–44.
On appeal, the defendant argued that he was entitled
to a new trial with respect to the kidnapping charge as
to Razek as a result of the court’s failure to instruct
the jury in accordance with Salamon. Id., 244–45. Our
Supreme Court rejected the state’s argument that Sala-
mon did not apply and turned to the issue of harm-
lessness. Id., 248–50. In rejecting the state’s argument,
the court noted that there was conflicting testimony
from the two victims as to whether it was the defendant
or the accomplice who forcibly moved Razek to the
car. Id., 250. If the jury had credited Cortes’ version
of events, it might have found the defendant guilty of
kidnapping solely on the basis of the restraint during
the actual assault. Id., 251. It further noted that the
state had charged the defendant with the kidnapping
of Razek, and not with conspiracy to commit kidnap-
ping or being an accessory to kidnapping. Id., 252. Under
these circumstances, the lack of a Salamon instruction
was not harmless beyond a reasonable doubt. Id., 253.
In State v. Flores, 301 Conn. 77, 79–80, 17 A.3d 1025
(2011), the defendant was convicted of numerous
offenses, including kidnapping in the first degree and
robbery in the first degree. The defendant and two
accomplices, wearing dark clothes and ski masks,
entered the bedroom of the victim and her boyfriend.
Id., 80–81. The defendant tapped the victim on the shoul-
der with a gun and asked her where she kept her money.
Id., 81. The defendant attempted to cover her mouth
with duct tape, but she resisted. Id. The victim, who
knew the defendant socially and deduced his identity,
believed his statement that he was not going to hurt
her. Id. One of the defendant’s accomplices placed the
gun in the mouth of the victim’s boyfriend, and the
other accomplice struck the boyfriend in the head after
he attempted to escape out of a window. Id., 81–82. After
taking some of the possessions from the apartment, the
defendant and his accomplices left. Id., 82. The time
frame of the incident was between five and twenty
minutes. Id.
On appeal, the state conceded that a Salamon instruc-
tion should have been given, but argued that it was
harmless error. Id., 83. In reviewing this claim, our
Supreme Court noted that, due to the manner in which
the state had charged the defendant, the kidnapping
charge applied only to the victim, and not the victim’s
boyfriend. Id., 85. Additionally, the state did not claim
that the period of restraint exceeded the time necessary
to commit the robbery, so its appellate argument was
limited to the issue of the amount of force used to
restrain the victim. Id. Because the victim was not
bound or moved physically during the commission of
the robbery, which lasted for no more than five minutes,
and was released immediately upon the conclusion of
the robbery, our Supreme Court determined that it
would have been reasonable for a jury to find, if
instructed properly, that the restraint did not rise to
the level of a kidnapping apart from the armed robbery.
Id., 87. In short, under the facts and circumstances
presented, ‘‘at what point the force used to commit the
robbery [became] so excessive as to have independent
criminal significance [was] a quintessential question of
fact for determination by the jury.’’ Id., 89.
In Epps v. Commissioner of Correction, 153 Conn.
App. 729, 731, 108 A.3d 1128 (2014), the petitioner had
been convicted of kidnapping and assault. The peti-
tioner and the victim had been engaged, but the victim
wanted to end the relationship after learning that the
petitioner had contracted a sexually transmitted dis-
ease. Id., 732. While in the petitioner’s van, the victim
ended the relationship, at which time he pulled her into
the backseat and attempted to choke her several times.
Id. Eventually, she returned to the front seat, at which
time the petitioner poured gasoline on her and set her
on fire. Id. The petitioner testified that he only had hit
her in self-defense and that after he left the van, the
victim had set herself on fire. Id., 733.
In his habeas petition, the petitioner claimed error
in his criminal trial because the jury had not received
the Salamon instruction. Id. In addressing the issue of
prejudice as a result of inadequate kidnapping instruc-
tions, we applied the harmless error standard subse-
quently mandated by our Supreme Court in Hinds v.
Commissioner of Correction, supra, 321 Conn. 256.
Epps v. Commissioner of Correction, supra, 153 Conn.
740. In concluding that the state had not met its burden,
we stated: ‘‘This is not a case in which the allegations
that gave rise to the kidnapping charge, or any of the
charges, were uncontested and supported by over-
whelming evidence. Although the incident endured
longer than it took to commit the assault, the evidence
is not undisputed or overwhelming that the victim’s
movements were restricted by the petitioner during all
or portions of that incident, if at all. The victim testified
that the petitioner repeatedly held her down, by sitting
on top of her and pinning her down with his knees to
restrain her, even when he was not hitting or choking
her. The petitioner disputed those allegations. In pro-
ceeding through an iteration of the evidence presented
at trial, and the permissible inferences that may be
drawn from that evidence, concerning the duration of
the subject incident, the actions of the petitioner and
the actions of the victim, the commissioner is asking
this court to weigh that evidence, little of which was
undisputed, and the majority of which consisted of the
testimony of the petitioner versus the testimony of the
victim. Such is not a task that is properly ours to under-
take.’’ Id., 741.
In State v. Thompson, supra, 118 Conn. App. 142–43,
the defendant, following a court trial, was convicted of
kidnapping in the first degree, sexual assault in the first
degree and attempt to commit sexual assault in the
first degree. The defendant, a drug dealer, entered the
vehicle driven by the victim, who was seeking to pur-
chase drugs. Id., 143–44. The victim previously had pur-
chased drugs on credit from the defendant but had not
yet paid for them. Id. The defendant refused the victim’s
offer to pay him, slapped her, and ordered her to pull
the vehicle over. Id., 144. After the defendant removed
the keys from the ignition, the victim attempted to flee
but was grabbed by the defendant and pulled to the
side of a nearby building. Id. The victim, after receiving
several punches, complied with the defendant’s demand
that she remove her clothes. Id. The defendant then
sexually assaulted her. Id. The entire episode lasted
fifteen to twenty minutes. Id. The defendant forced the
victim into the passenger’s seat and drove on several
streets. Id. At some point, the victim escaped. Id.,
144–45.
On appeal to this court, the defendant claimed that
his conviction of kidnapping should be reversed on
the basis of Salamon and its progeny. Id., 154. After
reviewing the relevant cases from our Supreme Court;
see id., 154–60; we noted that our review was limited
to the defendant’s conduct up to the completion of
the sexual assault because § 53a-92 (a) (2) requires the
intent to either physically injure or violate or abuse the
victim sexually. Id., 160–61. Thus, under the facts of
the case, our analysis was limited to the conclusion of
the sexual assault. Id. We further noted that the trial
court, as the finder of fact, ‘‘was required to have made
a specific factual finding, if it determined that such a
finding was justified by the evidence, that the defendant
in this matter must have intend[ed] to prevent the vic-
tim’s liberation for a longer period of time or to a greater
degree than that which [was] necessary to commit the
other crime.’’ (Internal quotation marks omitted.) Id.,
161.
We determined that this court could not supply the
required findings. Id., 162. ‘‘Put simply, we are unable
to conclude that the evidence before us does not reason-
ably support a finding that the defendant’s restraint of
the victim was or was not so inextricably linked to
the underlying crime itself. . . . Contrary to the state’s
contention, it is not clear beyond a reasonable doubt
that the verdict would have been the same in the
absence of the alleged impropriety. The state’s evidence
was not so overwhelming that it would prevent a con-
verse finding by the fact finder as to whether the defen-
dant’s restraint of the victim was inherent in, or merely
incidental to, the sexual assault.’’ (Citation omitted.) Id.
We conclude our review of the relevant cases, with
facts that fairly can be described as a literal parade of
horribles, with Hinds v. Commissioner of Correction,
supra, 321 Conn. 56. As we previously detailed, our
Supreme Court eliminated the application of the proce-
dural default doctrine in cases involving a collateral
attack on a final judgment rendered prior to the Sala-
mon decision. Id., 76. We also, however, must consider
the facts, as well as the reasoning that supported the
conclusion that the lack of the Salamon instruction
was not harmless error. In Hinds, the victim left a
grocery store and was walking to a friend’s apartment
located nearby. Id., 61. The victim cut through a parking
lot where she was followed by the petitioner, causing
her to run. Id., 61–62. The petitioner pursued and
grabbed her, putting one hand around her waist and the
other briefly over her mouth. Id., 62. After threatening to
kill the victim if she screamed, he threw her to the
ground and dragged her by the legs to a grassy area,
behind a bush, where it was darker. Id. The petitioner
sat on the victim’s chest with his legs outside her arms
so that she could not move, and ordered her to open
her mouth. Id. He forced her to perform fellatio on him,
and after ejaculating in her mouth, patted her on the
cheek and told her that she could leave. Id. The victim,
frozen in fear, remained; so the petitioner entered his
vehicle and left. Id. During his trial, the jury was not
given the Salamon instruction. See id.
Addressing the issue of harmlessness, the court noted
that it was required to ‘‘consider the legal parameters
set forth in Salamon, and the standard for assessing
whether the omission of such guidance to the jury
requires reversal of the petitioner’s kidnapping convic-
tion.’’ Id., 76–77. It stated that if the evidence regarding
a defendant’s intent was susceptible to more than a
single interpretation, then the question was one for
the fact finder. Id., 79. ‘‘The petitioner’s actions in the
present case were a continuous, uninterrupted course
of conduct lasting minutes. The petitioner could not
accomplish the sexual assault without grabbing [the
victim] and bringing her to the ground. He released [the
victim] as soon as the sexual assault was completed.
Thus, the essential fact is the movement of [the victim].
[The victim’s] asportation from the spot where she was
grabbed to the site of the sexual assault, however,
appears to be a matter of yards and accomplished in a
matter of seconds. Although that movement took [the
victim] from the lit parking lot to the adjacent dark
ground by a bush, an act that undoubtedly reduced the
risk of detection in one regard, it also brought [the
victim] in very close proximity to an occupied residence
in the lot adjacent to the parking lot. There is no evi-
dence that the risk of harm to [the victim] was made
appreciably greater by the asportation in and of itself.
A properly instructed jury reasonably could conclude
that the petitioner’s intention in moving [the victim]
from the lit lot to the dark, grassy area was to prevent
her from being able to get a good look at his face,
because he could not perform in the lit space, or simply
to avoid the hard paved surface while kneeling on the
ground.’’ (Footnotes omitted.) Id., 79–80.
The court later noted that the victim’s ability to
escape was not diminished as a result of the movement
from the parking lot to the grassy area and, aside from
the brief moment when the petitioner placed his hand
over her mouth, the victim’s physical ability to summon
help was impaired solely due to the nature of the sexual
assault. Id., 87. It also quoted, with approval, from a
decision by the Superior Court: ‘‘Although no minimum
period of restraint or degree of movement is necessary
for the crime of kidnapping, an important facet of cases
where the trial court has failed to give a Salamon
instruction and that impropriety on appellate review
has been deemed harmless error is that longer periods
of restraint or greater degrees of movement demarcate
separate offenses. . . . Thus . . . multiple offenses
are more readily distinguishable—and, consequently,
more likely to render the absence of a Salamon instruc-
tion harmless—when the offenses are separated by
greater time spans, or by more movement or restriction
of movement. Conversely, multiple offenses occurring
in a much shorter or more compressed time span make
the same determination more difficult and, therefore,
more likely to necessitate submission to a jury for it to
make its factual determinations regarding whether the
restraint is merely incidental to another, separate crime.
In those scenarios, where kidnapping and multiple
offenses occur closer in time to one another, it becomes
more difficult to distinguish the confinement or
restraint associated with the kidnapping from another
substantive crime. The failure to give a proper Salamon
instruction in those scenarios is more likely to result
in harmful error precisely because of the difficulty in
determining whether each crime has independent crimi-
nal significance.’’ (Citations omitted; internal quotation
marks omitted.) Id., 92–93; see also Wilcox v. Commis-
sioner of Correction, supra, 162 Conn. App. 743–46.
Against this backdrop we now consider the present
case. As made abundantly clear by our review of the
precedents from this court and our Supreme Court, this
determination requires a detailed consideration of the
facts and circumstances relating to the criminal con-
duct. Here, the criminal trial court found that the peti-
tioner encountered the victim on a street corner, got
off his bicycle, physically grabbed the victim by the
legs, dragged her along the ground for approximately
113 feet to the window well of a nearby church.8 The
petitioner forced the victim into a window well, which,
according to the uncontested evidence, was four and
one-half feet deep9 and lined with rocks. The petitioner
kept her in the window well for a period of time between
ninety and one hundred and twenty minutes.
While in the window well, the petitioner forced the
victim to lower her pants, at which time he knocked
her to the ground. He got on top of her and attempted
to insert his penis into her vagina. The victim struggled
and screamed10 while scratching and clawing the peti-
tioner. Her attempts at self-defense, however, were
unsuccessful, as the petitioner used his superior
strength to hold the victim down during his attempt
at sexual assault by way of vaginal penetration.11 The
petitioner grasped the victim’s hair and forced his penis
inside her mouth on three separate occasions during
the encounter. The victim testified that the total time
of oral penetration was five minutes, and this was not
contradicted at any point by the petitioner.
The criminal trial court found that the victim repeat-
edly tried to escape and that the petitioner repeatedly
prevented her from doing so. At some point, a third
party interrupted the petitioner, and, at this point the
victim was able to escape from the window well. While
being chased by the petitioner, the victim jumped onto
the hood a car located at the corner of West Street and
Harmony Street. The victim pleaded for help from the
occupants of the car, and then, in an effort to get away
from the petitioner, ran to a nearby telephone pole and
held onto it. At that point, the petitioner pried her off,12
dragged her to a nearby area between a house and
detached garage, and again attempted to sexually
assault her. The police arrived shortly thereafter,13 at
which point the petitioner fled from the scene.
We conclude that the present case is more analogous
to the cases where a reviewing court concluded that
the lack of the Salamon instruction was harmless error
and distinguishable from those cases14 in which the
absence of the Salamon instruction or finding required
a new trial. In order to reach this conclusion, we care-
fully have reviewed and considered both the facts and
the legal reasoning of the precedent cited herein. We
are satisfied that the respondent has met his burden.15
To answer the question of whether the absence of
the Salamon standard constituted harmless error
requires us to examine the factors and principles enun-
ciated in that case. We iterate that ‘‘[a] defendant may be
convicted of both kidnapping and another substantive
crime if, at any time prior to, during or after the commis-
sion of that other crime, the victim is moved or confined
in a way that has independent criminal significance,
that is, the victim was restrained to an extent exceeding
that which was necessary to accomplish or complete
the other crime. . . . For the purposes of making that
determination, the [fact finder should] consider the vari-
ous relevant factors, including the nature and duration
of the victim’s movement or confinement by the defen-
dant, whether that movement or confinement occurred
during the commission of the separate offense, whether
the restraint was inherent in the nature of the separate
offense, whether the restraint prevented the victim from
summoning assistance, whether the restraint reduced
the defendant’s risk of detection and whether the
restraint created a significant danger or increased the
victim’s risk of harm independent of that posed by the
separate offense.’’ State v. Salamon, supra, 287 Conn.
547–48; see also Hinds v. Commissioner of Correction,
supra, 321 Conn. 78–79.
Here, the petitioner pulled the victim to the ground
and dragged her 113 feet to the window well, but it is
unclear how long this process took, as the evidence
indicates that the victim was resisting this movement.
The petitioner’s movement of the victim in this case is
distinguishable from the facts in Hinds, where the vic-
tim was moved ‘‘only a matter of yards,’’ which occurred
in a matter of seconds. Hinds v. Commissioner of Cor-
rection, supra, 321 Conn. 80. Furthermore, while the
events of Hinds were described as a ‘‘continuous, unin-
terrupted course of conduct lasting minutes’’; id., 79;
in the present case, the petitioner’s criminal conduct
continued for nearly two hours and was interrupted by
both the actions of a third party and the victim’s
attempts to escape. Moreover, the petitioner dragged
the victim more than 100 feet from the site of their
initial encounter to the window well, and then moved
her from the telephone pole to the area between the
white house and detached garage. In contrast to the
facts of Hinds, there was no evidence that one area
was lit or that there was an occupied building. See id.,
80. Additionally, the risk of harm to the victim in the
present case was appreciably greater as a result of the
movement to the restrictive area within the window
well, which was lined with rocks. Cf. Hinds v. Commis-
sioner of Correction, supra, 80. This movement to the
window well also served to reduce the likelihood of
detection. Nor could a reasonable fact finder conclude
that the window well was more conducive for the crime
of sexual assault. See State v. Ward, supra, 306
Conn. 737.
Most significantly, the asportation of the victim to
the window well diminished her ability to escape.16 See
Hinds v. Commissioner of Correction, supra, 321 Conn.
87. The victim was placed in an area, essentially a deep
hole, that served as a secondary restraint on her move-
ment, the first being the physical restraint by the peti-
tioner. The confines of the window well severely limited
the victim’s escape routes. By limiting the direction in
which she could flee, the petitioner had a greater ability
to control her movement. Additionally, even when the
five and one-half foot tall victim was able to escape
from the physical custody of the petitioner, the depth
of the window well, which measured four and one-
half feet, appreciably debilitated her ability to escape
because of the inherent and obvious difficulty in climb-
ing out.17 In other words, the window well served as a
second level of restraint on the victim, orchestrated by
the petitioner, and a reasonable fact finder could not
conclude that this additional restraint was necessary
to complete the crime of sexual assault or attempt to
commit sexual assault. See id., 92; see also State v.
Wilcox, supra, 162 Conn. App. 748; Eric M. v. Commis-
sioner of Correction, supra, 153 Conn. App. 846–47;
State v. Jordan, supra, 129 Conn. App. 222–23. More-
over, a fact finder reasonably could not conclude that
the confinement of the victim in the window well was
merely incidental to and necessary for the commission
of the sexual assault charges. Simply put, the confine-
ment of the victim in the window well had independent
criminal significance.
Furthermore, after the victim was able to escape from
the window well, the petitioner chased after her. The
victim threw herself on the hood of a car and then
clutched a telephone pole, at which point the petitioner
ordered her to let go of the telephone pole, grabbed
her arms, and choked the victim until she was left with
no choice but to release her grip. The petitioner then
dragged the victim to an area between the white house
and detached garage and again attempted to sexually
assault her. These additional acts by the petitioner fur-
ther evidence an intent to frighten the victim, to prevent
her escape, and to restrain her more than was necessary
to sexually assault her or attempt to commit that crime.
The facts of the present case also are distinguishable
from those found in Salamon, DeJesus and Sansever-
ino, the trilogy of cases in which our Supreme Court
reconsidered its interpretation of our statutes and deter-
mined that restraint incidental to the commission of
another offense no longer constituted the crime of kid-
napping. In State v. Salamon, supra, 287 Conn. 514–15,
the fifteen year old victim disembarked a train in Stam-
ford after falling asleep. The defendant followed her
into a stairwell in the train station. Id., 515. The defen-
dant grabbed the victim by the back of her neck, causing
her to fall to the ground and injure her elbow. Id. The
defendant then positioned himself next to the victim
and held her down by the hair. Id. After the victim
screamed, the defendant punched her in the mouth and
attempted to place his fingers in her throat. Id. The
victim was able to escape. Id. A jury found the defendant
guilty of kidnapping in the second degree, unlawful
restraint in the first degree and risk of injury to a child.
Id., 512–13.
In State v. DeJesus, supra, 288 Conn. 423–24, the
defendant, a manager of a supermarket, instructed the
victim to go into a room in the upper level of the store.
The defendant entered the room, removed the victim’s
pants and underwear and instructed her to sit on a
desk. After ignoring the victim’s statement that she did
not want to do this, the defendant sexually assaulted
the victim. Id., 423. Afterward, the victim moved away
from the defendant, put on her clothes, and left the
room. Id. The defendant was convicted of two counts
of sexual assault in the first degree and one count of
kidnapping in the first degree. Id., 420–21.
In State v. Sanseverino, supra, 291 Conn. 581, the
defendant, the owner of a bakery, followed the victim,
G, into the back room and grabbed her. He pushed the
victim against the wall and forced her arms over her
head. Id. The victim could not move because the defen-
dant pressed his body against her. Id. After pulling down
her pants, and then his, the defendant sexually assaulted
the victim. Id. He then released the victim. Id. The
defendant subsequently was convicted of kidnapping
in the first degree and sexual assault in the first degree.
Id., 583.
In Salamon, DeJesus and Sanseverino, the jury rea-
sonably could have found that the restraint of the vic-
tims was incidental to the commission of another
offense, and therefore the convictions of kidnapping
could not stand. In this case, however, the petitioner’s
restraint and movement of the victim had independent
criminal significance to support his conviction of kid-
napping. Moreover, we are mindful of our Supreme
Court’s observations that the Salamon rule did not con-
stitute a ‘‘complete refutation’’; State v. Salamon, supra,
287 Conn. 546; of the principles in its prior kidnapping
jurisprudence and that its holding was ‘‘relatively nar-
row and directly affects only those cases in which the
state cannot establish that the restraint involved had
independent significance as the predicate conduct for
a kidnapping.’’ Id., 548.
Under the facts and circumstances of this case, we
conclude that a reasonable fact finder, under the proper
interpretation of our kidnapping law, could not find
that the restraint of the victim was merely incidental
to or an inherent part of the sexual assault crimes. Given
the uncontested and overwhelming evidence before the
criminal trial court, we conclude that that judgment
would have been the same had Judge White applied the
law set forth in Salamon. The evidence presented by
the state, considered as a whole; see State v. Ward,
supra, 306 Conn. 738; would prevent a finding that the
restraint in this case was inherent in, or merely inciden-
tal to, the crimes of sexual assault and attempt to com-
mit sexual assault. See State v. Thompson, supra, 118
Conn. App. 162. The failure of the criminal trial court
to make the Salamon finding was harmless error.
The judgment is reversed and the case is remanded
with direction to deny the petitioner’s amended petition
for a writ of habeas corpus.
In this opinion the other judges concurred.
1
In his main and reply briefs, the respondent also argued that the habeas
court improperly (1) considered the petitioner’s due process claim before
addressing the cause and prejudice test to defeat the affirmative defense
of procedural default and (2) determined that the petitioner had established
‘‘good cause’’ for failing to raise his Salamon claim on direct appeal.
After oral argument, our Supreme Court released its decision in Hinds
v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016), which
we will discuss extensively. The Hinds decision held that the petitioner’s
Salamon claim was not subject to the procedural default doctrine. Id., 76.
Following publication of the Hinds decision on the Judicial Branch website,
we ordered the parties, sua sponte, to file simultaneous supplemental briefs,
addressing the effect of the Hinds decision on the present case. We received
the briefs from the parties on May 9, 2016.
In the respondent’s supplement brief, he stated: ‘‘Assuming the holding
of Hinds is final, it is binding. Thus the [respondent’s] claims in his main
and reply briefs that the habeas court incorrectly applied the standards
under the procedural default doctrine fail.’’ The respondent further explained
that Hinds was decided incorrectly and did not ‘‘withdraw his claims
addressed in his main and reply briefs.’’
As an intermediate appellate court, we, of course, are bound by the
decisions of our Supreme Court. See State v. Madera, 160 Conn. App. 851,
861–62, 125 A.3d 1071 (2015); State v. Grant, 149 Conn. App. 41, 54, 87 A.3d
1150, cert. denied, 312 Conn. 907, 93 A.3d 158 (2014). We agree with the
respondent that his claims regarding the procedural default doctrine must
fail in the present case. The only issue left, therefore, is whether the respon-
dent established that the court’s failure to apply the Salamon standard in
the petitioner’s 2002 criminal trial was harmless error.
2
In State v. Nogueira, supra, 84 Conn. App. 820, the issue before this
court was whether the denial of a motion to suppress the out-of-court
identification of the petitioner by the victim violated his due process right
to a fair trial. Therefore, our recitation of these facts originated from the
victim’s testimony at the hearing on the motion to suppress. In this opinion,
we will set forth the facts found by the criminal trial court that supported
the petitioner’s conviction.
3
Other cases during this time period that altered the interpretation of our
kidnapping statutes include State v. Sanseverino, 287 Conn. 608, 949 A.2d
1156 (2008), overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953
A.2d 45 (2008), and superseded in part after reconsideration by State v.
Sanseverino, 291 Conn. 574, 579, 969 A.2d 710 (2009), overruled in part by
State v. Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012).
4
Judge Nazzaro determined, in the context of the issue raised in the
petitioner’s first habeas trial, that there was more than incidental restraint
in this case. Specifically, he stated: ‘‘[T]here was overwhelming evidence
of a struggle, of a dragging of the body, of the pleas for help, the screaming,
the re-assaults if you will, the oral violation of the victim, the attempted
vaginal violation, the constant withholding of the liberty of the victim, so
there is no question there is sufficient evidence of guilt on all the charges.’’
Nogueira v. Warden, supra, 2011 WL 3890968, *10. He later noted in the
memorandum of decision that ‘‘because of the abundance of evidence that
the restraint was far more than incidental,’’ an appeal based on State v.
Salamon, supra, 287 Conn. 509, would not have succeeded. Nogueira v.
Warden, supra, 2011 WL 3890968, *13.
5
The petitioner subsequently abandoned his claims of ineffective assis-
tance of his prior habeas counsel.
6
On the basis our decisions in Hinds v. Commissioner of Correction,
151 Conn. App. 837, 97 A.3d 986 (2014), aff’d, 321 Conn. 56, 136 A.3d 596
(2016), and Epps v. Commissioner of Correction, 153 Conn. App. 729, 108
A.3d 1128 (2014), the habeas court concluded that the petitioner had satisfied
the cause and actual prejudice prongs, and therefore was not procedurally
defaulted. With respect to the latter, the court stated: ‘‘Having reviewed the
entire record in this case, the court is not satisfied beyond a reasonable doubt
that the omitted element was uncontested or supported by overwhelming
evidence, such that the jury verdict would have been the same had the
correct instruction on the charge of kidnapping applied by the [criminal]
trial court. Although the incident took place over an extended period of
time, the evidence and findings of the [criminal] trial court indicate that the
victim was assaulted during that time, except for short periods when he
was interrupted or the victim escaped. When the victim escaped and was
caught by the petitioner, he again restrained her and assaulted her during
that time until the police arrived. Thus, given the proximity in time and
location of the restraint and abduction to the sexual assault and other
charges, there is a reasonable probability that absence of the proper charge
prejudiced the petitioner and subsequently impacted the trial. Although the
evidence supporting the other charges was overwhelming, this cannot be
said of the charge of kidnapping, making it a question properly for a jury
or trier of fact to decide.’’
It then concluded that ‘‘the petitioner’s due process rights were violated
by the absence of the application of the [criminal] trial court of the Salamon
charge on kidnapping. In addition, the court rejects the respondent’s affirma-
tive defense of procedural default finding that the petitioner has established
cause for not raising the issue in his direct appeal, and prejudice, in that
the absence of the proper kidnapping instruction significantly impacted the
trial such that the petitioner suffered actual prejudice.’’
7
The court in Hinds noted that the procedural default standard set forth
in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977),
had been adopted in Connecticut. ‘‘Under this standard, the petitioner must
demonstrate good cause for his failure to raise a claim at trial or on direct
appeal and actual prejudice resulting from the impropriety claimed in the
habeas petition. . . . [T]he cause and prejudice test is designed to prevent
full review of issues in habeas corpus proceedings that counsel did not raise
at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . .
The cause and prejudice requirement is not jurisdictional in nature, but
rather a prudential limitation on the right to raise constitutional claims in
collateral proceedings.’’ (Citation omitted; internal quotation marks omit-
ted.) Hinds v. Commissioner of Correction, supra, 321 Conn. 71.
8
The victim also testified that she struggled ‘‘[t]he whole time, at every
moment’’ during the time period that the petitioner dragged her to the
window well. This testimony was not contested by the petitioner.
9
The depth of the window well is significant because the victim testified
that she was five and one-half feet tall, so being placed in this window well
made escape substantially more difficult as she not only had to break away
from the physical restraint of the petitioner, but also had to climb out of
what amounted to a deep hole in the ground. Additionally, the depth reduced
the risk of detection of the petitioner’s criminal conduct. These factors were
not present in Hinds v. Commissioner of Correction, supra, 321 Conn. 59.
10
The victim stated that she implored the petitioner to ‘‘leave her alone’’
and to let her go, but he instructed her to ‘‘shut up’’ and ordered her not
to cry. Again, this testimony was not disputed during the criminal trial.
11
The victim testified that she tried on several occasions to get out, but
that she was not able. She also stated that the petitioner punched her and
threatened to kill her. During this point, she pleaded with the petitioner to
not ‘‘hurt me anymore.’’
12
The victim testified that while she clung to the telephone pole, the
petitioner demanded that she let go, and then pulled on her arms in an
effort to remove her from the pole before strangling her, which caused her
to release her grip.
13
The victim indicated that period of time was ‘‘not even five or ten
minutes . . . .’’
14
See State v. Fields, supra, 302 Conn. 253; State v. Flores, supra, 301
Conn. 83; Epps v. Commissioner of Correction, supra, 153 Conn. App. 742;
State v. Thompson, supra, 118 Conn. App. 161.
15
We note that we were not presented with a case in which the time of
the underlying offense was brief and was either preceded or followed by
an extended period of restraint. See, e.g., State v. Hampton, supra, 293
Conn. 435 (victim restrained for three hours prior to assaults); Farmer v.
Commissioner of Correction, supra, 165 Conn. App. 462 (victim restrained
for six to seven hours following assault); Eric M. v. Commissioner of Correc-
tion, supra, 153 Conn. App. 846 (sexual assault lasted few minutes and
entire period of restraint occurred during a period spanning at least five
hours); State v. Kirby, 137 Conn. App. 29, 51, 46 A.3d 1056 (defendant
assaulted victim with stun gun in her home and then took victim for circu-
itous drive on back roads of New London County with time spent at his
home), cert. denied, 307 Conn. 908, 53 A.2d 222 (2012); State v. Strong,
supra, 122 Conn. App. 131 (defendant restrained victim for prolonged period
and made two brief threats to kill victim and permit his friends to sexually
assault her); State v. Nelson, supra, 118 Conn. App. 831 (significant period
of restraint following assault).
Although the events of the present case lasted for a period of up to two
hours, the facts do not indicate any demarcation between the time of the
assault and the overall incident. In other words, under the record before
us, we are unable to determine the amount of time in which the sexual
assault and attempt to commit sexual assault occurred vis-a``-vis the overall
period of time of the incident.
16
The placement of the victim in the window well also served to frighten
and subdue her to prevent her from summoning assistance despite the
fortunate and timely arrival of the third parties in this case. See State v.
Ward, supra, 306 Conn. 736. It also made detection less likely. Id., 737.
17
The victim testified that when the petitioner briefly left to fight with a
third party, she tried to get out of the window well, but the depth impeded
her departure and allowed the petitioner to throw her back down. Only
following another altercation between the petitioner and the third party was
the victim able to get out of the window well. The petitioner, however, was
able to quickly hunt her down and resume his felonious conduct.